169 Ind. 105 | Ind. | 1907
Appellant commenced this action to recover
“The emission of dense black or'gray smoke from any smokestack or chimney used in connection with any stationary steam boiler, locomotive, or furnace of any description within the corporate limits of the city of Indianapolis, in any apartment house, office building, hotel, theater, place of public amusement, school building, institution, locomotive, or any other structure in the city of Indianapolis, or in any building used as a factory, or for any purpose of trade, or for any other purpose whatever, except as a private residence, shall be deemed and is hereby declared to be a public nuisance.”
There was a judgment against appellant in the court below, and in this court his counsel urge the following objections to said ordinance: (1) That said section declares the emission of dense black or gray smoke a nuisance regardless of the question whether the smoke emitted does, or even can, in the particular locality, work injury, inconvenience, nuisance, or discomfort to anyone in the enjoyment of his reasonable rights of person and of property; (2) that said ordinance.is void because of the exemption of private residences; (3) that the ordinance wherein said section is found relates to different subjects of legislation aé they are classified in the act concerning cities. We shall consider these contentions in their order.
There is nothing disclosed by the record in this case, and there is no fact within our judicial knowledge,, to warrant the conclusion that the city has not reasonably exercised the legislative powe^ which has been delegated to it. The ordinance does not prohibit the use of soft coal, but countenances such use, provided that dense black or dense gray smoke is not emitted. The ordinance assumes that the emission of such smoke may be prevented, and the intendment must be in favor of the validity of this assumption.
Judgment affirmed.